Avoiding harassment and discrimination in the workplace

Employers could be under a duty to prevent sexual harassment in the workplace under new reforms proposed by the government.

This month the Government published its highly anticipated response to its consultation on sexual harassment in the workplace, which concluded in October 2019. As well as introducing a duty on employers to prevent workplace sexual harassment, the response recommends workplace protections against third-party harassment and extending the time limit to bring employment tribunal discrimination from three months to six months. The response does not set out the detail nor is there a clear timeframe for the legislation to be introduced, other than the new duty to prevent sexual harassment in the workplace will be as soon as parliamentary time allows. Therefore, the changes are unlikely to be imminent.

Various stakeholders, including the Equality and Human Rights Commission (EHRC) were involved in the consultation, which looked at the alarming prevalence of workplace sexual harassment and how employers could prevent it from happening.

All reasonable steps

The proposed introduction of the duty would require a reformulation of the existing law. Currently, employers are liable if an incident of sexual harassment occurs, although there’s a defence if the employer can show that it took “all reasonable steps” to prevent the discriminatory conduct, or type of conduct, alleged to have been done by one of its staff in the course of employment.

The Government response suggests while liability for incidents of sexual harassment or discrimination in the workplace would remain, employers could also be potentially liable for failing to take preventative action without the need for an incident to have occurred. The response envisages dual enforcement in respect of this new duty by the EHRC and individuals.

The response adds that the Government will also support the EHRC in developing a statutory code of practice for employers on how to prevent sexual harassment in the workplace.

Without full details of the new duty, it is difficult to assess the likely impact of the proposed new legislation. In practice, the reasonable steps defence is already very narrow in scope and difficult for employers to succeed with. Conversely though, if an incident has not occurred, it may be difficult to evidence an employer’s failure to comply with the new duty, save in cases where the employer has taken no steps to address sexual harassment at work.

Practical advice

Nevertheless, the direction of travel from the Government is clear. It sees the above as a first step to increase employer awareness of the preventative steps they should be taking to comply with the law and make workplaces safer. As such, whilst the legislation changes are not imminent, this is something employers should be thinking about now. Further, as we seek to recover from the pandemic, we have an opportunity to tackle inequalities by putting equality and human rights at the heart of our recovery strategies.

Here are a few practical things that employers can be doing now in anticipation of the proposed changes:

1. Senior management need to recognise that tackling sexual harassment, diversity, and inclusion in the workplace is a priority, and changes to policies, practices, and possibly the culture of the organisation are likely to be needed.
2. Organisations should have an effective anti-harassment policy that sets out expectations and a zero-tolerance approach to sexual harassment and discrimination of any kind, as well as the consequences for failing to comply and an effective procedure for addressing complaints.
3. Policies need to be meaningful, working documents, not something that is filed away on the intranet. As such, raising awareness of the anti-harassment policy, engaging with your workforce on the issues featured in the policy (e.g. regular awareness campaigns, fostering an inclusive culture where victims feel able to come forward), and regularly reviewing the policy, reflecting any feedback and trends identified will keep it relevant and embedded in the organisation.
4. All staff should receive training on what sexual harassment or other forms of discrimination might look like, what to do if they experience or witness it and how to handle complaints. Again, this shouldn’t be a tick box exercise and should be meaningful, relevant and regularly refreshed.
5. Organisations should make sure that diversity and inclusion are central to the whole employee journey - from recruitment and promotion to exit. This should involve the collection of feedback to identify trends and areas of concern. It’s crucial to identify any areas of weakness where there’s an increased chance of discrimination (e.g., vulnerable workers, power imbalances, third party relationships, etc).
6. Making sure that all staff, but managers in particular, know what to do if a complaint of sexual harassment or any other form of discrimination is made. There are multiple considerations here from confidentiality to potentially criminal implications, so ensuring managers are fully aware of these issues and how to handle them appropriately is crucial. It may also be worthwhile embedding this in the objectives of leaders and managers.
7. Identifying a trusted champion at a senior level who can make sure that sexual harassment, alongside diversity and inclusion, remains on the agenda, gets talked about and encourages colleagues to be “allies” who feel able to call out any discrimination at the organisation.
8. Making pay, reward and progression transparent. Discrimination can take many forms, and transparency forces a scrutiny of values from within and should help create a culture of achievement based on objective measures and enable the organisation to identify and scrutinise any anomalies.

We can help

On 21 September 2021, we’ll be holding our first Virtual Employment Roadshow of 2021 which will focus on diversity and inclusion as we learn and emerge from the pandemic. Click here for full details and to sign up.

On 2 December 2021, we’re holding a practical masterclass on avoiding discrimination and managing equality and diversity in the workplace. For full details and to sign up, click here.

We can also run our practical masterclass sessions for employers, in-house. If you’d like to talk about how this could work for your organisation, please get in touch with Lisa Kelly on 0191 211 7897 or by emailing [email protected]